This case is before us on remand from
the Supreme Court, which vacated our prior decision, State v. Rambo, 209
Or App 598, 149 P3d 172 (2006) (Rambo I), in light of State v. Ramirez, 343 Or 505, 173 P3d 817 (2007), adh'd to as modified on recons,
344 Or 195, 179 P3d 673 (2008), and State v. Fults, 343 Or 515, 173 P3d
822 (2007). State v. Rambo, 345 Or 316, 195 P3d 63 (2008). In Rambo
I, we vacated defendant's sentences and remanded for resentencing because
the trial court had imposed a departure sentence based on judicial findings
that defendant was persistently involved in similar offenses. That factfinding
constituted plain error, and we exercised our discretion to correct it. The
issue before us on remand is whether, in light of Ramirez and Fults,
we properly exercised our discretion under Ailes v. Portland Meadows, Inc.,
312 Or 376, 381-82, 823 P2d 956 (1991). We conclude that our exercise of
discretion in Rambo I was erroneous. Accordingly, we affirm.

Defendant was convicted of two counts
of first-degree robbery, two counts of second-degree assault, felon in
possession of a firearm, and possession of a controlled substance. The court
imposed a dispositional departure sentence of 18 months' imprisonment on the
felon in possession of a firearm conviction, explaining that it was defendant's
"fourth conviction for being a felon in possession of a firearm since
1991."

On this record, we readily conclude
that there is no legitimate debate that the jury would have found defendant to
have been persistently involved in similar offenses. See Ramirez, 343
Or at 513 (setting out "legitimate debate" standard for exercise of
discretion to review unpreserved challenges to departure sentences based on
judicial findings of fact). As we explained in State v. Williams, 225
Or App 325, 328-29, 201 P3d 267 (2009), under State v. Bray, 342 Or 711,
724, 160 P3d 983 (2007), there is no legitimate debate that a jury would have
found a defendant to have been persistently involved in similar offenses where
the number and frequency of the defendant's prior convictions compels the
inference that his or her criminal behavior has been "persistent."
As the trial court observed, defendant's current conviction for felon in
possession of a firearm was his fourth conviction for that offense in 13
years. That evidence was uncontroverted and, in our view, overwhelming.
Accordingly, we decline to exercise our discretion to review the assigned
error.